Mental Health Law Reform in the New and Old Paradigm of Legal Capacity

1. Mental Health Law Reform in the New and Old Paradigm of Legal Capacity Amita Dhanda Professor and Head Centre for Disability Studies, NALSAR, Hyderabad

2. Construction of Legal Capacity • Passive • Selective • Varied According to Context • Peculiar to Persons with Disabilities • Static Understanding of Legal Capacity • Support if loss of Capacity • Loss Externally Monitored through Fair Process Safeguards • Active • Universal • Applied to All Areas of Life • Equal basis with others • Evolving nature of Legal Capacity • Support with Capacity • Will Respecting Safeguards Old Paradigm New Paradigm

3. Arguments of the Presentation • The altered construction of legal capacity in the CRPD should guide mental health law reform. • Post CRPD Mental Health law Reform needs to be different from the incapacity driven pre-CRPD effort. • Equality and non discrimination; reasonable accommodation and real choice needs to drive the CRPD prompted mental health law reform.

4. Pre-CRPD Mental Health Law Reform Efforts • Movement from a Status or Outcome Based test of Competence to a Functional Approach • Movement from routine institutionalization to the least restrictive alternative • Induction of Fair process safeguards to prevent abuse of the compulsory care provision

5. Post CRPD Dilemmas or Controversies • All persons recognized to possess legal capacity but the search for the ultimate test continues • In those rare cases of lack of capacity how should decision-making happen? • Should force be barred in all situations? • What about emergencies ?

6. Pre and Post CRPD Dilemmas? • Are they different ? • If not, then has the rounded nature of the new paradigm of legal capacity been missed? • Has the new paradigm gone flat ?

7. What would the new paradigm require • A total acceptance of the presumption of legal capacity i.e., all humans possess legal capacity by the fact of being human • Right is accompanied with a State obligation to provide support • Yes it is a legal fiction but a fiction which like all fiction opens up possibilities for creation

8. What is the Essential Requirement to Make a Choice ? • It is not the mental capacity to make a choice • It is the existence of a choice or choices. • Optimum performance of the State Obligation to create choice

9. Explore the Equality Possibilities • Need to see the commonalities between persons with and without disabilities • Examine the possibilities of reasonable accommodation • Evaluate norms for accessibility

10. Need to Under Legislate • Cannot create relationships of trust through the procedures of mistrust • To develop skills of persuasion the legal permission to use force needs to be ousted • Need to distinguish between force sanctioned by the law and the force of persuasion

11. if someone else was making decisions for you. They could decide to take you away, lock you up, not listen to you, give you medication, block you from doing your work and living your life with your body and mind the way they are. WOULD YOU WANT THIS TO HAPPEN TO YOU? Wouldn't you have the feeling that you have lost you dignity and want it back? Wouldn't you feel your integrity has been violated? Wouldn't you want to have support in making decisions without being taken over and to ask for help without being seen any the less for it? Wouldn't you want to maintain your inherent dignity and be supported to make your decisions? Wouldn't you want to retain your integrity and continue to be you?

12. IMAGINE • The principles established in this Convention are universal and will apply to all human beings, as much to you as to me. • Let us make a Convention for a world where we can all grow and develop with mutual support. • IMAGINE A CONVENTION FOR ALL.